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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Monday, November 30, 2015

This plaintiff went to trial on a false arrest claim. He handled the trial and this appeal pro se. His position at trial was that the police lacked probable cause to arrest him for obstructing governmental administration. He lost the trial. But he gets a second trial because the judge did not properly charge the jury on the elements of the obstructing charge.

The case is Ozoukwu v. City of New York, decided on November 5. The police said they approached plaintiff in a park, who was sitting on the bench eating Jell-O. The park rules said you cannot enter the park without a child or a stroller. When the police asked plaintiff if he had any children with him, he refused to answer. One of the officers testified that, "to get his attention, I took his Jell-O and I threw it out." (You read that correctly). The police said plaintiff began yelling at them, so he was charged with disorderly conduct and obstructing.

At trial, the jury during deliberations asked the judge if you can be guilty of obstructing if you refuse to speak to a police officer. The judge told the jury that refusal to answer the questions, without more, is not obstructing governmental administration, but "whether refusal to acknowledge or respond to police questions is considered obstruction of governmental administration depends on the totality of the circumstances as you find them."

Plaintiff gets a new trial on his false arrest claim because this jury charge was wrong and could have affected the outcome of the trial. The Court of Appeals (Winter, Pooler and Sack) tells us more than we ever wanted to know about what makes up an obstruction charge. And this will probably be the go-to case on false arrest cases arising from obstructing arrests. After noting that cases in New York say that obstruction arrests require proof that the defendant interfered with police activity through either intimidation, physical force or violence or any independently unlawful act, the Court holds as follows:

Under New York law, it is clearly established that Uzoukwu’s constitutionally protected silence could not constitute any element of the crime of obstructing governmental administration, even if such silence interfered with the officers’ attempt to investigate whether Uzoukwu was violating park rules. Therefore, the district court should have simply answered "no.”

The basis for this ruling is that you have the right to remain silent. Your silence cannot form the basis of an obstructing charge. You can even walk or run away if the police question you without fear of an obstructing charge. "For this reason, refusal to answer police questions ... cannot satisfy the 'independently unlawful act' prong." Relatedly, "obstruction of governmental administration cannot rest upon refusal to provide identification."

Monday, November 23, 2015

This case was big news in Orange County in the late 1990s, involving a marijuana dealer who was accused of killing someone who had ratted him out to the police. The body was never found. The case has gone through many appeals, first through the state system and then in federal court, where the defendant brought a habeas corpus action. The Court of Appeals rejects the habeas petition, and that's probably the end of the line for this guy.

The case is Chrysler v. Guiney, decided on November 19. The facts represent your typical murder case. Chrysler vowed revenge against the snitch, and the murder victim disappeared one morning. But Chrysler's car had the victim's blood in it and his glasses were found at the victim's house, where he was last seen. The victim's DNA was found in Chrysler's car, and so on. There was quite a bit of other circumstantial evidence that linked Chrysler to the murder. The prosecution called witnesses who had implicated Chrysler in one way or another.

There was a second defendant, Weygant, who testified in the Grand Jury and offered testimony that did not help Chrysler. But Chrysler agreed to a consolidated criminal trial with Weygant, and his trial lawyer did not object when the prosecution read Weygant's Grand Jury testimony to the jury, even though Chrysler's lawyer was not able to cross examine this testimony. Although that created a Confrontation Clause problem, Chrysler's appellate lawyers did not raise that issue on appeal from the conviction. So Chrysler brings this habeas petition challenging the ineffective assistance of appellate counsel, which is a recognized basis to challenge your conviction and to demand a new trial.

At first glance, appellate counsel should have raised the Confrontation Clause issue on appeal. At the Supreme Court had just issued the Crawford ruling, and as the Second Circuit says in this case, "we assume that the admission of [the Grand Jury testimony] implicated Chrysler's Confrontation Clause rights." But the analysis goes beyond that. First, this issue was not preserved for appeal because trial counsel did not object to the Grand Jury testimony. Second, while the appellate courts in New York can still take up an unpreserved issue, it probably would not have done so unless the trial errors were quite egregious and deprived the defendant of a fair trial. In this case, the evidence of Chrysler's guilt was overwhelming, and a fairminded jurist on the Appellate Division could have thought the Grand Jury evidence merely corroborated the remaining evidence of Chrysler's guilt. As appellate counsel was entitled to proceed with the strongest arguments on appeal and not clutter up their brief with weaker arguments, the Second Circuit (Livingston, Kearse and Carney) finds they were not ineffective as Chrysler's lawyers.

What do we learn from this case? We learn that some constitutional errors are not enough to win the appeal. If the defendant is so guilty that the constitutional error would not have made a difference, then the habeas petition will fail. This case also reminds us that state courts have some leeway in interpreting the Constitution as it sees fit, and that it is not enough for the Second Circuit to disagree with the state courts. A habeas petition must only be granted if the state courts unreasonably interpreted the Constitution; a mere violation is not enough.

Friday, November 20, 2015

Normally, the client must live with his lawyer's choices. But not always. In this case, the client says his lawyer made decisions about the case without his knowledge. In particular, the lawyer agreed to drop certain claims. The client found out about this and asked the judge for help. The judge refused to do so. The Court of Appeals says the judge has to convene a hearing to see if the lawyer lacked authority to dismiss these claims.

The case is Gomez v. City of New York, decided on November 5. This is a civil rights case alleging plaintiff was falsely arrested. As Gomez was a City police officer, he was fired as a consequence of that arrest. He sues over his termination also. Gomez hired Reid as his lawyer, who stipulated to dismiss nearly all of Gomez's claims except for the employment claims. When Gomez learned that Reid had dismissed most of his claims, he asked the judge to declare the stipulation null and void because "my lawyer did not have my permission to dismiss all claims." The trial court denied Gomez's request.

The Court of Appeals (Katzmann, Pooler and Chin) says the district court got it wrong. True, the Second Circuit said, "that courts are generally reluctant to recognize attorney error as a basis for relief from an order or judgment." Also, clients are bound by their attorneys' acts. But that rule is not absolute. "Unlike many other acts that an attorney undertakes on a client's behalf, the decision to settle or otherwise dismiss claims 'rests with the client' and is 'not automatically bestowed ... on retained counsel." Here is how the Court of Appeals reasons it out:

The circumstances of this case clearly raised a factual dispute concerning Reid’s authority to dismiss Gomez’s claims. Within days of the stipulation’s signing, Gomez filed a pro se motion for relief from the stipulation and a detailed letter setting forth his assertion that Reid lacked the authority to dismiss his claims. Because the presumption that an attorney‐of‐record has authority to settle a case is rebuttable, the district court should not have denied Gomez’s motion without holding an evidentiary hearing to address Reid’s authority to dismiss Gomez’s claims. And contrary to the City’s contention that Gomez should have come forward on appeal with additional evidence supporting his assertions, Gomez’s detailed letter to the district court below is sufficient to warrant a remand for further development of the record.

Thursday, November 19, 2015

The law says prohibits the unlawful possession of a loaded weapon. This law has some exceptions for police officers, military servicemembers and persons "voluntarily surrendering such weapon ... provided that such surrender shall be made ... in accordance with such terms and conditions as may be established by the superintendent, sheriff, police force or department" to whom the weapon is surrendered." This false arrest case implicates that law.

The case is Markman v. City of New York, a summary order decided on November 2. Plaintiff was arrested for possessing a loaded weapon after he called the police to his car to report a possible explosive underneath his vehicle and a gun and ammunition in the trunk. He says he is entitled to the innocent possession exemption under the statute. It is true, the Court of Appeals (Chin, Katzmann and Castel [D.J.]) says, that "an officer would lack probable cause if the arrestee's entitlement to a statutory exemption were so plain that no reasonable officer could think otherwise."

But that exemption does not help plaintiff. The Court of Appeals says things were not so clear-cut for Markman:

Here, reasonable officers could disagree about whether Markman was entitled to the statutory exemption. When the officers arrived at his vehicle, they found no explosive underneath it, no evidence of tampering, and a gun and ammunition in a closed trunk to which only Markman had access. In short, Markman’s claim that others had left or planted the gun in his trunk was subject to objectively reasonable skepticism. Because the elements of the crime of unlawful possession were met and the exemption was not undebatably applicable, the arresting officers had at least arguable probable cause to arrest Markman and initiate prosecution. They are therefore entitled to qualified immunity for his claims for false arrest and malicious prosecution.

For those of you who do not handle cases like this, arguable probable cause gives the police the benefit of the doubt in close cases. Arguable probable cause falls under the qualified immunity umbrella, which protects public officials and employees from suit if their actions were objectively reasonable at the time of the alleged civil rights violation.

Tuesday, November 17, 2015

The Supreme Court has quietly held that a police officer who shot at a fleeing motorist during a high-speed chase is immune from suit because the state of the law at the time of the shooting did not make it clear that he violated the Fourth Amendment in firing the shots.

The case is Mullenix v. Luna, decided on November 9 in the form of a per curiam opinion without oral argument. In other words, the Court thinks this was an easy case. Only Justice Sotomayor dissents. It all started when some lunatic led the police on an 18-minute chase at speeds between 85 and 100 miles per hour. The motorist claimed to have a gun and said he would shoot the officers if they did not leave him alone. The police laid down spike strips to disable the vehicle, but one officer, Mullenix, decided to shoot at the car from an overpass. Mullenix had no training for this maneuver. Before waiting for his superior officer to sign off on this approach, and before waiting to see if the strip spikes would work, Mullenix aimed his gun at the car and fired, killing the driver. After the driver was hit, the car engaged the spike strip, causing the car to roll over.

I used to guest teach a class at a local college where I would give the students a fact pattern and ask them to predict how the Supreme Court would decide the case. I would then explain the Court's reasoning. My guess is the students in this case would say the officer was liable for the driver's unlawful death. That's because students are unaware of qualified immunity, which says the police are immune from suit if they did not violate clearly-established law at the time of the incident. Clearly-established law means the case law was specific enough that any public official was on notice that he was violating the Constitution. Although thousands of court rulings have come down over the years on police conduct, judges still have not contemplated every factual scenario. Like this one. Here is how the Court frames the issue:

In this case, Mullenix confronted a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer at Cemetery Road. The relevant inquiry is whether existing precedent placed the conclusion that Mullenix acted unreasonably in these circumstances “beyond debate.” The general principle that deadly force requires a sufficient threat hardly settles this matter.

The Court says the legal backdrop for these cases has always been hazy. "The Court has ... never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for denying qualified immunity." Since there is no case quite like this one, the officer is given the benefit of the doubt and the plaintiff loses.

Justice Scalia concurs, stating that "It does not assist analysis to refer to all use of force that happens to kill the arrestee as the application of deadly force. The police might, for example, attempt to stop a fleeing felon’s car by felling a large tree across the road; if they drop the tree too late, so that it crushes the car and its occupant, I would not call that the application of deadly force. Though it was force sufficient to kill, it was not applied with the object of harming the body of the felon."

Justice Sotomayor sees things differently, but no one else on the Court signs onto her dissent. She writes:

Balancing a particular governmental interest in the use of deadly force against the intrusion occasioned by the use of that force is inherently a fact-specific inquiry, not susceptible to bright lines. But it is clearly established that the government must have some interest in using deadly force over other kinds of force.

Here, then, the clearly established legal question—the question a reasonable officer would have asked—is whether,under all the circumstances as known to Mullenix, there was a governmental interest in shooting at the car rather than waiting for it to run over spike strips.

The majority does not point to any such interest here. It claims that Mullenix’s goal was not merely to stop the car,but to stop the car “in a manner that avoided the risks” of relying on spike strips.

Monday, November 16, 2015

The Court of Appeals reverses summary judgment in this racial discrimination case, holding that the jury may find the employer's reasons for denying the plaintiff tenure a pretext, even though the district court did not find independent evidence of discrimination.

The case is Sands v. Rice, a summary order decided on October 16. This case has particular interest for me, for several reasons. First, the case arose at the high school not far from where I am writing this. Also, the Court provides some guidance on when pretext alone is enough to survive summary judgment in Title VII cases.

Plaintiff was the guidance counselor at the high school. In dismissing her racial discrimination claim, the district court assumed she made out a prima facie case. But the district court granted the school's motion for summary judgment, reasoning that "although plaintiff had 'attempt[ed] to manufacture a question of fact with respect to some of the deficiencies noted in her ‘unsatisfactory’ performance evaluations, many of the deficiencies [were] unrefuted by plaintiff,' and regardless, 'any such question of fact [was] immaterial,' as plaintiff 'ha[d] critically failed to come forth with any evidence that the decision to deny her tenure was based on her race or a discriminatory animus on the part of defendants.'”

In Reeves v. Sanderson Plumbing (2000), the Supreme Court told us when summary judgment is appropriate in discrimination cases, stating:

“[A] plaintiff’s prima facie case,” ... when “combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Of course, “[t]his is not to say that such a showing by the plaintiff will always be adequate to sustain a jury’s finding of liability.” Indeed, “there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory.” But it is “err[or] [to] proceed[ ] from the premise that a plaintiff must always introduce additional, independent evidence of discrimination.”

In other words, prima facie case plus pretext may -- but does not always -- support a finding of discrimination. The problem is the Supreme Court has provided no guidance on how much pretext is enough to win the case in the absence of independent evidence of discrimination, such as a racist comment from a decisionmaker. The Second Circuit is a pretext-plus court, in my view, often requiring that the plaintiff offer more than just pretext to support a discrimination claim. As the Court tells us in this case, "Reeves prevents courts from
imposing a per se rule requiring in all instances that a claimant offer
more than a prima facie case and evidence of pretext" (citing Cross v.
NYC Transit Auth., 417 F.3d 241 (2d Cir. 2005)). But the last time this Court in a published opinion denied summary judgment solely on the basis of pretext was in D'Cunha v. Genevese, 479 F.3d 193 (2d Cir. 2007).

In this case, the Second Circuit (Cabranes, Raggi and Pooler) reverses summary judgment, stating, "the District Court erred in holding that plaintiff’s proof that defendants’ explanation was false was 'immaterial' because she had not introduced additional, independent evidence of discrimination. The District Court also erred in failing to consider 'the probative value of [that] proof,' as well as 'the strength of ... plaintiff’s prima facie case.'” The Court of Appeals also says plaintiff has proffered enough evidence to support a finding that defendants discriminated against her because of race. But the Court does not discuss the evidence. So we don't learn much from this reasoning unless we read the district court ruling. That ruling gives us some insight, but the district court rejected plaintiff's factual arguments, and if there is additional evidence of racial animus it is not in any court ruling. This is what the district court wrote:

Sands refers to several incidents which she appears to argue would demonstrate animus towards
her race on the part of defendants. By way of example, Sands claims that
she "began a Step [Dance] Team," and that "[a]fter one year of
providing [Sands] with a stipend for advising this club, . . . Clinton
and Rice ended this stipend and proposed that [she] advise the club
without charge," but she does not directly posit a reason why this
occurred. Although Sands appears to imply that
this was done because of her race, or because the "majority [of
students] participating on [the team] were African-American," what the record indicates, however, is that Sands was not paid
because she failed to submit the required claim form in order to receive
payment as an advisor; Sands cites to no record
evidence that would indicate that this decision was racially motivated.
In fact, the year prior, when Sands did submit the claim form, she was
paid a stipend for her services as advisor to the club.

Similarly,
Sands argues that Clinton "initially strongly opposed [her] hiring but
was convinced to hire her," and that from this, "[a] reasonable jury could easily conclude that Clinton harbored a bias against [Sands]
and that this tainted the entire tenure review process." However, what Sands neglects to mention in her argument is that
the only evidence of record on this issue indicates that Clinton's
initial hesitancy in hiring Sands stemmed from a reference she had
received from a former employer of Sands regarding a "communication
issue" that Sands had with that employer, and there
is nothing to indicate that this hesitancy was due to Sands' race. The
only allusion to potential race discrimination in Sands' own affidavit, points to the statement of Edgar Rodriguez, a member
of the board of education who, at the time of Sands' tenure decision,
"strongly favored grant[ing] tenure and believed that nefarious
motivations alone could explain a contrary decision." However, Rodriguez himself stated that
he could "only speculate nefarious reasons, including racism,
for denying . . . Sands tenure." It is well settled that "'conclusory allegations or
unsubstantiated speculation' [are in]sufficient to raise a triable issue of fact as to whether . . . discriminatory animus" played a role in an adverse employment action.

Further
damaging to Sands' argument is her admission that during her years of
employment at New Paltz High School, she was never called any racial
names or racial epithets by Rice or Clinton.

Friday, November 13, 2015

This prisoners' rights case alleges that the jail denied plaintiff kosher food and the religious head covering of his choice. Much to the dismay of the tough-on-crime crowd, I'm sure, he wins the appeal. And he does it pro se, without a lawyer.

The case is Barnes v. Furman, a summary order decided on October 22. Plaintiff says in 2004 he was denied kosher meals for a three to four month period because he identified as a Hebrew Israelite and not Jewish. He also says that in 2007, he was denied religious head covering because he then identified as Jewish and not Rastafarian.

Once again, an appeal turns on the issue of qualified immunity, which is legal-speak for the noption that public officials cannot be sued over constitutional violations that were not clearly-established at the time of the violation. If the case law was fuzzy at the time, the plaintiff loses, even if 20-20 hindsight says his rights were actually violated.

Plaintiff loses the kosher meals claim. Prisoners do have a right to a diet consistent with their religious beliefs. But in this case, it was objectively reasonable for defendants to think that their denial of kosher meals to an inmate who identified as a Hebrew Israelite did not violate his rights. Not only did prison officials rely on prison policy in this regard, but they relied on plaintiff's registered religious designation in making its kosher meal determination.

But plaintiff wins the religious head covering part of the appeal. The jail officials do not deny that plaintiff's rights were violated in the abstract. But they argue, under qualified immunity principles, that there was no clearly-established law allowing inmates to wear "head coverings of their choice." While the Court of Appeals has never held that prison officials must provide inmates with head coverings of their choice, it is clear that the jails cannot violate inmate rights without asserting a legitimate reason for doing so. The jail provides no good reason why they followed a policy that limited Jewish inmates' head coverings to yarmulkes only. Nor do they explain why they relied solely on the opinion of the New York State Board of Rabbis where the sincerity of plaintiff's religious belief is not in question.

Tuesday, November 10, 2015

I wonder why this case did not get more attention. A blind man sues the City of New York alleging that it violates the Americans with Disabilities Act because it does not allow equal or reasonable access to Central Park, i.e., the City does not provide proper signage at all inaccessible entrances to its facilities. The Court of Appeals says he may have a case.

The case is Bernstein v. City of New York, a summary order decided on October 26. The question is whether plaintiff has standing to sue. This issue arises more often than you think. Many ADA violations are attacked by plaintiffs challenging structural and other deficiencies. But they cannot sue establishments and public areas for the hell of it. They have to show they have a stake in the lawsuit. We call it standing.

To have standing in an ADA claim, a plaintiff must show he (1) alleged past injury under the ADA; (2) it was reasonable to infer the discriminatory treatment would continue; (3) it was reasonable to infer, based on the frequency of prior visits and proximity of defendant's services to the plaintiff's home; and (4) plaintiff intended to return to the location.

For the most part, plaintiff satisfies these standards. He has visited the Park in the past, and points out that the missing detectable warnings at crosswalks make it impossible for him to know that he is nearing a roadway with moving traffic. He cannot cross streets in the Park without the assistance from strangers. But the Complaint has a deficiency in regard to plaintiff's intent to return to the Park. He says he has visited the park hundreds of times and has been to New York 30 times per year for ten years. But the Complaint says nothing about his intent to return to the Park in the future. On remand, the district court must undertake further factfinding on this issue.

Sunday, November 8, 2015

The jailhouse is no picnic, which is why it's the house of punishment. But too much punishment violates the Constitution. The inmate wins his appeal.

I am always amazed when an inmate wins an appeal. Many people hate inmates and do not think they should have any rights. But if you think about it, many of the first ten Amendments to the Constitution (the Bill of Rights) have to do with criminal procedure and the rights of convicted persons, including the Eighth Amendment. It is true that some inmates are litigation machines who file lawsuit after lawsuit,with nothing to lose. But some of them do have a case, at least on paper. This is one of them.

The case is Lewis v. Swicki, a aummary order decided on October 27. The case was dismissed for failure to state a claim, which means the judge threw it out before the parties could take depositions and other discovery. But the complaint actually alleges a civil rights violation. Plaintiff says the correction officers did not prevent another inmate from assaulting him. Plaintiff was stabbed by an inmate who had slipped out of his handcuffs. According to Lewis, defendants knew the stabber had threatened to harm plaintiff "in the near future."

The Court of Appeals (Sack, Droney and Stanceu [D.J.]) says it does not matter that plaintiff was stabbed a few months after the attacker had threatened him. The Supreme Court said in Farmer v. Brennan (1994) that the plaintiff only needs to show that the jailers failed to act despite a substantial risk of serious harm to the inmate.The case returns to the district court to give plaintiff a chance to re-plead his Complaint to further develop his claim.

Friday, November 6, 2015

Civil rights cases against the federal government are harder to win than cases against state and local governments. The reason for this is while the Supreme Court said in the Bivins case in 1971 that you can sue the federal government for certain constitutional claims, the Court has actually recognized only a handful of ways you can bring these cases.

The case is Atterbury v. United States Marshalls Service, decided on November 3. Plaintiff was a court security officer in Rochester who went home sick one day after telling a senior employee that he wasn't feeling well. Under the rules, you have to get clearance from a supervisor to go home early. Plaintiff was ultimately fired over this, and she sues the government under the Due Process Clause.

When we think about constitutional lawsuits, Section 1983 comes to mind, shorthand for 42 U.S.C. § 1983. But Section 1983 only applies to the states. The Supreme Court said in Bivens that you can bring some constitutional claims against the federal government. But here is the legal test governing the courts will identify a new right under Bivens.

The analysis of whether to extend Bivens to a new context proceeds in two steps. First, a court must determine “whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Second, even in the absence of such an alternative process, a court “must make the kind of remedial determination that is appropriate for a common‐law tribunal, paying particular heed, however, to any special factors counseling hesitation before authorizing a new kind of federal litigation.”

In other words, don't count on it, especially if there is another way the plaintiff can recover some relief, even if it is not all the relief he might otherwise recover. There is no Bivens claim here. Factors counseling hesitation against identifying a new right include the fact that Congress enacted the Contract Disputes Act of 1978, which provides final resolution of all disputes arising from government contracts. While plaintiff would not be able to sue under this Act, that does not mean he can sue the government under Bivens. In passing the Act, Congress declined to provide a remedy for subcontractors or employees of subcontractors. This makes the court gun-shy about giving plaintiff a remedy in this case; to do otherwise would step on the shoes of Congress.

Plaintiff also cannot sue the government for constitutional violations under Bivens because he has a potential claim under the Administrative Procedure Act, which “permits a party to bring an equitable claim challenging arbitrary and capricious action of an administrative agency in federal district court and waives the government’s sovereign immunity with respect to such claims in that forum.” The Second Circuit "leave[s] it to the district court to determine, in the first instance, whether Atterbury has properly alleged that USMS acted arbitrarily and capriciously, or in a manner 'contrary to constitutional right, power, privilege, or immunity,' 5 U.S.C. § 706(2)(A), (B), in removing him from the Court Security Program."

Wednesday, November 4, 2015

If you are doing a Google search on notices of appeal and come upon this blog post, and if you ignore everything else that I say, please know this: the deadlines for filing a notice of appeal are jurisdictional and for the most part will not be extended and if you blow the deadline your case is over and that is that. This case drives that point home.

The case is Franklin v. McHugh, decided on October 30. This appears to be an employment case. But the Court of Appeals does not reach the merits; it focuses on the notice of appeal deadline. Plaintiff had until October 27, 2014 to file that notice. He tried to do so on October 23, using the ECF electronic filing system used by the federal courts. So far, so good. Plaintiff does this a week before the deadline runs out. But something went wrong with the ECF system. Although he got a receipt for timely paying the filing fee, the notice of appeal was not docketed. On October 28, the EDNY clerk's office told plaintiff's lawyer to refile the documents and pay the fee again. He did so on October 28, one day after the deadline.

It may seem unfair for plaintiff to lose this appeal on a technical defect stemming from the non-filing of his notice of appeal that was not his fault but the ECF system's fault. But the Court of Appeals (Kearse, Livingston and Carney) notes the EDNY electronic filing User's Guide "plainly implies" that an electronic filing is not complete until the last screen, called "Notice of Electronic Filing" appears on the user's computer. Yet, while counsel intended to timely file a notice of appeal, he did not actually do so because he did not follow through on the electronic filing process. Here is how the Second Circuit sees it:

Here, although Franklin’s counsel undoubtedly intended to file a notice of appeal electronically on October 23, 2014, his efforts fell short of the mark. His account of his attempt to file electronically a notice of appeal on October 23 suggests strongly that counsel simply overlooked the last step of the process: he appears to have followed the electronic filing process through the fee‐paying stage only, stopping upon receiving the receipt for payment. He does not represent that he proceeded past that point or that he received the critical Notice of Electronic Filing screen; and he appears to have failed at the time to notice the shortcoming.

As described in the User’s Guide, only the appearance of the Notice of Electronic Filing screen would have confirmed that the notice of appeal was actually filed and docketed. The notice of appeal therefore was not “filed” with the Eastern District’s Clerk’s Office on October 23, and our Court is not at liberty to treat it as having been filed then. Rather, the record is plain that the notice was filed—untimely—on October 28, 2014.

The Court of Appeals recognizes that the ECF system may present challenges for counsel, "but counsel have long been charged with becoming familiar and complying with the various local rules of our courts. The clerk's offices willingly make themselves available to answer questions and to assist counsel in meeting deadlines and filing documents that comport with applicable rules, and the courts offer training" on ECF procedures. While a true ECF malfunction may be overlooked in excusing a late filing if the party files a motion for a late filing under Federal Appellate Rule 4(a)(5)(A) under the "excusable neglect or good cause" rule, plaintiff's counsel did not seek that relief in this case.

So what have we learned in this case? That 30-day filing rule for notices of appeal will normally not be extended. Don't wait until the last minute to file it, and don't wait too long to ensure the filing was registered in the system. And if something goes afoul, file a motion under Fed. R. App. Proc. 4(a)(5)(A). If the plaintiff cannot get a break under these circumstances, then no one can.

Monday, November 2, 2015

In this Title VII retaliation case, the Court of Appeals ruled 2-1 that an Asian Studies professor at City College did not have a retaliation case stemming from her termination that closely followed her internal discrimination charge. I wrote about the majority decision here. Now it's time for the dissent, which sees the case very differently.

The case is Chen v. City University of New York, decided on October 28. Plaintiff filed an internal discrimination complaint in connection with a strange student who took up her time and became a pest. Plaintiff consulted with a College administrator, Lesen, who advised plaintiff on how to deal with the student. At the time of the meeting, the student was no longer in plaintiff's class, but he intended to enroll in one of her courses the following semester. Lesen and another College actor, Calichman, did not like how plaintiff handled her meeting with the student (they were surprised that she met with the student right away and she wanted him to agree to certain behaviors). After Lesen and Calichman placed those concerns in writing, plaintiff accused them of discrimination, alleging in part that Lesen had engaged in ethnically degrading behavior during the counseling meeting with plaintiff. Shortly thereafter, plaintiff was terminated. The College defended this decision based on her inability to get along with others. As fully discussed here, the majority says plaintiff has no case because the College was concerned about plaintiff's collegiality even prior to her discrimination complaint.

Judge Chin dissents, and it's quite lengthy. Bear in mind that, in private practice, Judge Chin represented plaintiffs in Title VII cases. So he has seen these cases from the plaintiff's side. He was also a trial judge before rising to the Court of Appeals, so he knows what inferences juries may draw in cases like this. Here are his main points:

1. The district court and appellate majority resolved disputed fact issues in finding that plaintiff failed to handle the student according to Lesen's instructions. "Chen contends that Lesen instructed her to
confront the Student and set up boundaries even though he was not then enrolled in her class, and that Lesen suggested that Chen do so immediately, that is, before the end of the semester. In contrast, Lesen denies that she suggested that Chen should interact with the Student before the end of the semester and contends specifically that she told Chen 'not to deal with these behaviors before they actually occurred.'"

2. Judge Chin also noted that the district court said ʺ[d]efendantsʹ actions, contrary to constituting evidence of retaliation for Chenʹs complaints, are entirely consistent as a progressive response to Chenʹs ʹdisturbing incidentʹ with the Student.ʺ That finding in favor of the College may be true, Judge Chin says, but "while the actions might have been 'entirely consistent' with the concept of progressive discipline, they also could have been found by a reasonable jury to be retaliatory."

3. The timeline suggests defendants retaliated against plaintiff. The meeting with the student happened on May 13, 2009. Chen met with College officials a week later to discuss that incident. Only 18 days later, Calichman recommends that Chen be removed as Director of the Asian Studies Program. On August 25, 2009, plaintiff files an internal discrimination complaint. Two months later, Chen is denied reappointment. A few weeks after filing a complaint with the State Division of Human Rights, she learns she is permanently terminated. "While defendants removed Chen as Director of the Asian Studies Program before she filed with the Affirmative Action Office, this occurred after she had already complained to Calichman and Murphy about the incident. Further, the decision to not reappoint her came after the Affirmative Action Office filing. Accordingly, the timeline of events supports an inference that Chen was dismissed for complaining about the incident and then complaining of discrimination against her."

4. Her positive performance reviews permits the inference of retaliation, as they praised her scholarship and other achievements. She was also promoted as Interim Director of the Asian Studies program in her three years at City College. Second Circuit law -- Stratton v. Department of the Aging, 132 F.3d 869 (2d Cir. 1997), a decision written by Judge Chin -- holds that a history of positive evaluations can support the plaintiff's discrimination claims, as they rebut management's claim that plaintiff does not deserve to work there.

5. The jury could find Calichman tainted the reappointment process because he knew about her internal discrimination complaint and actively advocated against her reappointment. The other seven professors who were up for reappointment that year all received it unanimously, but plaintiff did not any receive any favorable votes.

6. Plaintiff's punishment was disproportionate to her alleged misconduct. A SDNY case -- Nembhard v. Memorial Sloan-Kettering, 918 F. Supp. 784 (SDNY 1996), another decision written by Judge Chin -- supports this reasoning. As plaintiff was well-regarded for three years and reappointed twice, the jury could find she deserved a less severe punishment than termination.

7. Moving right along, Judge Chin further funds that the College offered shifting explanations to explain plaintiff's termination. Shifting explanations often point to pretext, because it suggests the employer is dissembling, coming up with new justifications to either bolster its case or to abandon weaker defenses that did not quite work. At first, in letting plaintiff go, the College said nothing about collegiality problems. It only referenced plaintiff's handling of the incident with the student. But in litigation, the College argued that it got rid of her because of "her longstanding inability to work in a colliegial manner with other faculty members, and her inappropriate conduct with respect to the student."

To Judge Chin, this is a lot of pretext, creating a "mosaic of facts" supporting her retaliation claim. The majority (Winter and Livingston) is not buying it. This is a close case, for sure, highlighting the fault line in retaliation cases. When does the plaintiff's prior performance problems knock out her retaliation claims attacking a later adverse action? When do shifting explanations establish pretext, and what exactly is a shifting explanation? Must the explanations be radically different from each other, or is it enough that the explanations have slight variations? And can you show pretext when the employer arguably goes too far in terminating the plaintiff's employment? There may never be a case that conclusively answers these questions.